Investigatory Powers Bill and client confidentiality

15 March 2016

Members of Parliament will today have the opportunity to debate
the Investigatory Powers Bill in the House for the first time. The
Bar Council explains where the Bill has gone wrong and looks
forward to working with members on all sides of the House at
committee stage to put in place proper protections for the right of
citizens to consult with their lawyer in confidence.

Chantal-Aimée Doerries QC, Chairman of the Bar,
said: "We will be following the second reading of the
Investigatory Powers Bill very closely, particularly for debate on
the surveillance of communications between lawyers and clients.

"This aspect of the Bill raises important issues about the rule
of law. It is vital that the Bill is given proper parliamentary
scrutiny to ensure that it does not give rise to unforeseen and
unintended consequences. These could undermine efforts to safeguard
our national security and threaten the rights and freedoms of
individuals which we cherish."

Peter Carter QC, Chairman of the Bar Council
Surveillance and Privacy Working Group, said:

"The Government claims that the Bill contains 'protection for
lawyers'. We do not seek protection for lawyers; we seek the
preservation of protection from government intrusion for clients,
human and corporate. Disappointingly the Bill instead creates a
legislative framework that places surveillance of legally
privileged communications entirely within the law which undermines
the fundamental constitutional rights of the client.

"As drafted, the Investigatory Powers Bill ignores the clear
distinction between privileged and non-privileged communications
and gives authorities the power to intercept sensitive, highly
confidential communications that have nothing to do with
criminality, national security or threats to individuals.

"The police and intelligence services need powers and authority
to keep us safe, and it is right that Parliament should legislate
to produce a clear and robust legal framework within which those
powers may be exercised, but such efforts will be undermined if the
law fails to recognise the citizen's fundamental right to consult
with a legal representative in confidence.

"The Bar Council looks forward to working constructively with
MPs from all sides of the House at the committee stage to amend the
Bill in a way which allows the security and intelligence services
access to the information they need and protects the rights of the
client."

Legal Professional Privilege

Legal privilege is in fact the privilege of the client. It is
not special pleading on the part of lawyers. If confidential
lawyer-client communications find their way to the opposing party,
particularly where, such as in criminal proceedings, that party is
a branch of the state, there is an obvious risk of a miscarriage of
justice.

The fact that a person suspects that communications with his or
her legal adviser may find their way to the opposing party, or may
be subject to surveillance by intelligence agencies, means that
they may then be inclined to tell only part of the truth. This has
a "chilling effect" on free and frank lawyer-client
communication. Thus the protection of legal privilege is a
cornerstone of the rule of law.

Where a client is communicating information to their lawyer
which relates to an ongoing criminal purpose, such as an imminent
and serious threat to life, of serious injury, or to national
security, those communications are not privileged and intelligence
agencies should be authorised to intercept and use the information
they contain.

There will also be times when intelligence agencies need to
intercept communications to determine if they are privileged, and
the Bar Council will support amendments that allow such a process,
based on compelling evidence, to take place.